Judge Recommends John Eastman Be Disbarred, and Pay a Sanction of $10,000, for His Conduct Seeking to Subvert the 2020 U.S. Presidential Election

From the 128-page opinion:

As an initial matter, the court rejects Eastman’s contention that this disciplinary proceeding and Eastman’s resultant discipline is motivated by his political views or his representation of President Trump or President Trump’s Campaign. Rather, Eastman’s wrongdoing constitutes exceptionally serious ethical violations warranting severe professional discipline. As stated by Earl C. and others, “there is no right way to do the wrong thing.” As counsel for President Trump during a disputed presidential election, Eastman made multiple patently false and misleading statements in court filings, in public remarks heard by countless Americans and to others regarding the conduct of the 2020 presidential election and Vice President Pence’s authority to refuse to count or delay counting properly certified slates of electoral votes on January 6, 2021. These statements, made with varying degrees of intent, were improperly aimed at casting doubt on the legitimate election results and support for the baseless claim that the presidency was stolen from his client—all while relying on his credentials as an attorney and constitutional scholar to lend credibility to his unfounded claims.


Even after courts in key states authoritatively rejected unsupported allegations of outcome-determinative fraud in the election, Eastman persisted in proposing a legally unsustainable strategy. From November 2020 forward, as his many legal challenges failed, Eastman substantively advanced the false narrative that widespread fraud had tainted the election, and that Vice President Pence possessed the power to contravene the constitutional
electoral process. His demonstrated intent was to foment loss of public confidence in the integrity of the 2020 election and persuade Vice President Pence to refuse to count or delay the counting of electoral votes on January 6. Most of his misconduct occurred squarely within the course and scope of Eastman’s representation of President Trump and culminated with a shared plan to obstruct the lawful function of the government.


While attorneys have a duty to advocate zealously for their clients, they must do so within the bounds of ethical and legal constraints. Eastman’s actions transgressed those ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support. Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law. While his actions are mitigated by his many years of discipline-free practice, cooperation, and prior good character, his wrongdoing is substantially aggravated by his multiple offenses, lack of candor and indifference. Given the serious and extensive nature of Eastman’s unethical actions, the most severe available professional sanction is warranted to protect the public and preserve the public confidence in the legal system….

The scale and egregiousness of Eastman’s unethical actions far surpasses the misconduct at issue in Segretti. Unlike Segretti whose offenses occurred outside his role as an attorney, Eastman’s wrongdoing was committed directly in the course and scope of his representation of
President Trump and the Trump Campaign. This is an important factor, as it constitutes a fundamental breach of an attorney’s core ethical duties. Additionally, while the Segretti court found compelling mitigation based on his expressed remorse and recognition of his wrongdoing, no such mitigating factor is present with Eastman. To the contrary, Eastman has exhibited an unwillingness to acknowledge any ethical lapses regarding his actions, demonstrating an apparent inability to accept responsibility. This lack of remorse and accountability presents a significant risk that Eastman may engage in further unethical conduct, compounding the threat to the public. Given the greater magnitude of Eastman’s transgressions compared to Segretti and the heightened risk of future misconduct from his complete denial of wrongdoing, imposing greater discipline than in Segretti is appropriate to protect the public and uphold public confidence in the legal system. Guided by the standards, case law, and the purposes of attorney discipline, the court recommends that Eastman be disbarred.

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Josh Douglas: “The Montana Supreme Court Correctly Recognizes a Robust Right to Vote Under the State Constitution”

The following is a guest post from Joshua A. Douglas:

The Montana Supreme Court just issued a decision that represents a model for how state courts should consider the protections for the right to vote within state constitutions.

The case, Montana Democratic Party v. Jacobson, involves four laws passed in 2021 that, a lower court found after a nine-day trial, will make it harder for some people to register or cast a ballot. (The court provided a useful two-page summary of the 125-page decision here).

First, the legislature prohibited a voter who is not yet eighteen-years-old, but will be eighteen by Election Day, from receiving and returning an absentee ballot.

Second, the legislature eliminated same-day voter registration, instead closing the registration books at noon on the day before Election Day. Same-day registration is extremely popular in Montana, with 70,000 voters using it since 2006, and the state’s electorate rejected a measure to repeal it in a 2014 referendum. But the legislature eliminated it in 2021 anyway. 

Third, the legislature passed a law to restrict ballot collection, requiring the Secretary of State to enact rules that would preclude the paid collection and submission of absentee ballots by individuals or groups. The plaintiffs showed at the lower court that many voters, especially those from Native American communities and people with disabilities, rely on organizations to deliver their completed ballots.

Finally, the legislature eliminated the use of student IDs as proper voter IDs, requiring a voter who shows a student ID to provide an additional form of documentation. But the legislature could not point to any evidence that the use of student IDs would lead to any kind of voter fraud.

Four of the court’s seven justices ruled to affirm the lower court and strike down all four laws, while the three dissenting justices agreed with the majority on some but not all of the provisions (while questioning the majority’s approach to the state constitution). The majority found that each of the laws would interfere with the state constitutional right to vote.

But the holdings, while important for Montanans’ voting rights, are only part of the story. As someone who has written extensively on the power of state constitutions to robustly safeguard the right to vote, I was most interested in the constitutional test the court applied to the  Montana Constitution’s conferral of the right to vote.  

Continue reading Josh Douglas: “The Montana Supreme Court Correctly Recognizes a Robust Right to Vote Under the State Constitution”
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Third Circuit, on 2-1 Vote, Rejects Argument that It Violates the Materiality Provision of the Civil Rights Act to Not Count Timely But Undated Absentee Ballots in Pennsylvania

You can find the majority opinion and the dissent at this link.

The majority holds that the provision applies only to the question of who is eligible to vote, not whether an eligible voters’ votes are counted.

The court remanded for a consideration of an equal protection challenge, but that will be a tough claim to make.

This issue can really matter in a close statewide election. As the dissenting judge noted, “More than one million Pennsylvania voters mailed in their ballots in the November 2022 election. Of them, 10,000 timely-received ballots were not counted because they did not comply with the State law requirement that the voters’ declarations (‘the declarations”) on the mailing envelopes include a date below the voter’s signature [Citation], even though the date on the envelope is not used to (1) evaluate a voter’s statutory qualifications to vote, (2) determine the ballot’s timeliness, or (3) confirm that the voter did not die before Election Day or to otherwise detect fraud.”

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“Exclusive: A high-level election security group is back. NSA and Cyber Command want to keep it under the radar”

The Record:

U.S. Cyber Command and the National Security Agency will not identify the latest leaders of their joint election security task force, in part to shield them from the threats and harassment other election officials have received for merely being associated with such work.

In a departure from previous election cycles, neither organization will publicize the names of the co-chiefs of the Election Security Group (ESG) because of the often-hostile environment surrounding U.S. elections since the 2020 presidential race, Recorded Future News has learned.

The identities also are being withheld, government sources said, as part of a larger push by top U.S. national security and law enforcement officials to convey that election security is a whole-of-government effort and therefore public messaging on the charged topic should be driven by agency chiefs — such as the Director of National Intelligence or the head of the FBI — and not bureaucratic entities or career employees.

The shift in strategy and the heightened concern for the safety of officials both come as the Biden administration warns of potential foreign interference in the November elections as well as dangers to individuals who help run the system.

The warnings are on top of longstanding concerns about potential cyberattacks targeting voting infrastructure, or human errors becoming amplified in influence operations that undermine confidence in election outcomes — especially with the rise of commercially available artificial intelligence tools that can assist an array of attacks at scale….

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